In a judgment delivered last week by the Court of Justice of the European Union, the importance of the national court informing consumers of their right to cancel the travel package they have purchased, with the consequence of a full refund of payments made, even in extraordinary circumstances, was underlined.
Thus, if the traveller does not invoke his right to have the package of services purchased performed free of charge, even in cases of force majeure, because he is unaware of its existence, the court may, of its own motion, inform him of his right to cancel the package free of charge, subject to certain conditions.
According to Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel and package-related travel services, those conditions are: one of the parties to the contract relating to travel services must have initiated legal proceedings before a national court and those proceedings must relate to that contract.
The right of cancellation must therefore be linked to the subject-matter of the dispute, as defined by the parties, and the national court must have at its disposal all the factual and legal elements necessary to assess whether that right of cancellation could be invoked by the traveller concerned.
Moreover, the plaintiff must not have expressly indicated to the national court that he objects to the application of the Directive in respect of that right.
By way of example, as regards the grounds for termination of a package travel contract, the Court of Justice of the European Union has held that a global health crisis such as the COVID-19 pandemic must be regarded as likely to fall within the scope of the ‘unavoidable and extraordinary circumstances’ for which the abovementioned directive provides for full reimbursement, as an event which is clearly beyond control and the consequences of which could not have been avoided even if all reasonable measures had been taken.
Thus, we recall that in the Court’s judgment in Case C-83/22, a traveller purchased from the agency Tuk Tuk Travel on 19 October 2019 a package of travel services to Vietnam and Cambodia to be carried out on 8 March 2020, paying half of the total price of the trip.
The contract provided information on the possibility of termination before the departure date in exchange for payment of a fee. However, there was no mention of the possibility of free cancellation due to unavoidable and extraordinary circumstances occurring at the destination.
On 12 February 2020, in view of the spread of the coronavirus in Asia, the traveller informed Tuk Tuk Travel of his decision to terminate the contract and requested reimbursement of all sums he could claim.
As the agency informed him that, after deduction of cancellation charges, he would be reimbursed only a small part of the amount paid, the traveller took the case to court. He claimed that he had cancelled the contract almost a month before the scheduled departure date and invoked force majeure: the spread of the coronavirus in Asia.
The applicant, who was not represented by a lawyer, sought only partial reimbursement of the amount paid, since he considered that a quarter of that amount corresponded to the handling costs incurred by Tuk Tuk Travel.
The Court of Justice of the European Union thus concluded that the national court must examine of its own motion the right of free termination and is obliged, first, to inform the traveller of that right and, second, to give him the opportunity to rely on that right in the pending court proceedings.
On the other hand, the ex officio examination does not require the national court to terminate the contract for the package of travel services in question free of charge of its own motion, giving the traveller the right to full reimbursement of the payments made. It is for the traveller to decide whether or not he wishes to enforce this right before the court.
It should also be noted that in the Court’s judgment of 8 June 2023, UFC – Que choisir and CLCV, C-407/21 Commission – Slovakia, it was concluded that Member States cannot invoke force majeure to exempt, even temporarily, package travel organisers from the reimbursement obligation laid down in Directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015.
The Court stated that ‘reimbursement’ must be understood as a refund in money. Thus, the European Union legislature did not envisage the possibility of replacing that obligation to pay by a benefit in another form, such as the offer of vouchers, as was the case in the two cases referred to above.
The Court also recalled that, on the other hand, a national court, when seised of an action for annulment of national legislation which it considers contrary to European Union law, is obliged to annul it.
It can therefore be concluded that the objective of the directive referred to above is to achieve a high and as uniform as possible level of consumer protection.
In fact, reimbursement in cash is more likely to contribute to the protection of the interests of travellers, which obviously does not exclude the possibility that travellers may accept, on a voluntary basis, reimbursement in the form of a voucher.
We believe that in order to guarantee all the rights that a consumer may invoke in a dispute, even when there are extraordinary circumstances which might at first sight exonerate the travel agency to pay any amount of money, it is necessary to seek advice from a lawyer specialised in this field.
This article was prepared for the blog of the law firm Costaș, Negru & Asociații by av. Diana Badiu from the Cluj Bar Association.
Costaș, Negru & Asociații is a law firm with offices in Cluj-Napoca, Bucharest and Arad, which provides assistance, legal representation and advice in several practice areas through a team of 17 lawyers and consultants. Details of the legal services and the composition of the team can be found at https://www.costas-negru.ro.
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